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A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875
Journals of the Continental Congress --TUESDAY, FEBRUARY 2, 1779
The committee appointed to confer with the Commander in Chief respecting the aid necessary to be sent to South Carolina and Georgia, brought in a report; Whereupon,
Resolved, That Count Pulaski be ordered to march with his legion to South Carolina, and put himself under the command of Major General Lincoln, or the commanding officer of the southern department:
That the continental troops in North Carolina, said to be upon furlough, be immediately called in and ordered to march into South Carolina, and follow the orders of the commanding officer as aforesaid:
That the governments of Virginia and North Carolina be requested to afford all possible aid to South Carolina and Georgia, of men, arms, and other necessary articles, at the continental expence:
That orders be immediately issued for transporting to South Carolina, by the most safe and expeditious carriage, 128 barrels of gunpowder, and 12 chests of arms at
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Edenton, and 125 chests of arms at Baltimore; all the property of the United States:
That Colonel de Cambray be ordered to repair to Baltimore and Edenton, and to expedite the transportation; that, for this purpose, he be furnished with proper letters from the president of Congress to the governors of Maryland and North Carolina:
That fixed ammunition of 4000 six pound, 4000 four pound, and 4000 grape iron shot, 30 barrels of musket powder, and 2000 lb. of ball or lead, be transported from Philadelphia to South Carolina by sea:
That the Marine Committee do provide and despatch a proper vessel, with the utmost expedition, on this service:
That the Commander in Chief be directed to order one or more engineers to repair immediately to South Carolina, for the service of the southern department, if he shall judge it necessary.1
[Note 1: 1 This report, in the writing of Henry Laurens, is in the Papers of the Continental Congress, No. 33, folio 283.]
A letter, of 1, from Major General Greene, quarter master general, was read:
Ordered, That it be referred to the committee appointed to superintend the departments of the quarter master and commissary general.
Your committee to whom was referred the letter of the Quarter Master General, 1st February, 1779, report:
That such articles as are taken for the use of the Army during marches, and encampments be paid for at the rate which such articles are really worth, at the time and place when taken. But that it would be improper to make allowance for wanton devastations which may be committed, it being impossible to ascertain any precise mode in which justice will be done to Individuals or to the public; besides, that in most cases remedy may be had against the Commanding Officer, whose duty it is to prevent such mischiefs.2
[Note 2: 2 This report, in the writing of William Whipple, is in the Papers of the Continental Congress, No. 22, folio 147.]
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A letter, of 15 January, from Major General Gates, was read.1
[Note 1: 1 The letter of Greene is in the Papers of the Continental Congress, No. 155, I, folio 88; that of Gates, in No. 154, II, folio 45.]
A letter, of 30 January, from the Board of War, was read, representing that the firm of the house in which Mr. Penet is engaged, is Messrs. Penet, Windel & Co. and that Mr. Couloux's name is not to appear in the agreement; Whereupon,
Resolved, That, instead of Messrs. Penet & Couloux, mentioned in the resolution of the 2 January, the Board of War be authorized to contract with Mr. Peter Penet, for himself, Windel & Co. for a suitable number of muskets, with bayonets of a proper size, and other arms, to be manufactured in these states, agreeably to the proposals recited, previous to the resolution above mentioned.2
[Note 2: 2 This report is in the Papers of the Continental Congress, No. 147, III, folio 21.]
A letter, of 19 December last, from Jos. Clay, Esq. deputy paymaster general in Georgia, was read, with sundry papers enclosed:
Ordered, That the same be referred to the Board of Treasury.
A report being received from the committee, to whom was referred the report of the Committee on Appeals, of January 19, 1779:
The sense of the House was required, whether it be in order that reports, when received, be read: on the question, resolved in the affirmative.
The report was then read:
The Committee, to whom was referred the report of the Committee of Appeals, of January 19th, 1779, beg leave to report:
That Congress is by these United States Invested with Feb. 14th, Agreed. the supreme Sovereign Power of War and Peace.
That the power of Judging, executing the Law of Nations is Essential Agreed. to the Sovereign Supreme power of War and Peace.
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That all Questions relative to captures on the high Seas are to be Amended. decided by the Law of Nations.
That all Jurisdiction for deciding on matters according that are the Amended. Subject of the Law of Nations must Originate from the Sovereign Supreme power of War and Peace.
That the Jurisdictions for deciding all Causes relative to Captures on the high Seas which exist in the several States Originate from the Resolution of Congress passed the twenty fifth of November, Amended. in the year one thousand seven hundred and seventy-five, Section the Fourth, which directs that Trials in the said several Jurisdictions should be by Jury; but the said section extends the trial by Jury no further than the Jurisdiction of the particular State.
That by the Sixth Section of the same resolution the Congress assert the Supreme Control by Appeal over the several Jurisdictions Rejected. for deciding on captures made on the high Seas.
That this Control is Necessary in order to compel a Just and uniform Execution of the Law of Nations, and being Essential to the Supreme Sovereign power of War and Peace, the Congress Agreed. could not divest themselves of it. That this Control extends as well over the decisions of Juries as Judges; otherwise, the Juries would be possessed of the ultimate supreme power of executing the law of Nations in all cases of Captures, and might at any time exercise the same by a general Verdict Agreed. without a possibility of being Controlled; a Construction which Involves many Inconveniences, and absurdities, which destroys an Essential part of the Power of War and Peace; and would disable the Congress from giving Satisfaction to foreign Nations complaining of a Violation of Neutralities, of Treaties, or other breaches of the Law of Nations, and would, therefore, enable a Jury in any one State, to involve the United States in War Hostilities; a Construction which for these and many other obvious reasons, is inadmissable.
Your Committee further report:
That this power of Controlling by appeal the Several Admiralty Jurisdictions of the States has hitherto been exercised by Agreed. the Congress through the Medium of a Committee of their own Members; and the Committee, before whom an Appeal from the Court of Admiralty for the State of Pennsylvania was Agreed. determined, was duly constituted and authorised to determine the same.
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That the said Committee had Competent Jurisdiction to make thereon a final decree and therefore their decree ought to be carried into Execution.
That the Judge of the Court of Admiralty for the State of Pennsylvania alleges as his reason for refusing to carry into Execution the Decree of the Committee of Appeals in the Case of the Sloop Active, that an Act of the Legislature of the said State has declared that the finding of a Jury shall Establish the Facts in all Trials in the Courts of Admiralty without reexamination or Appeal, and that an Appeal is permitted only from the Decree of the Judge.
Your Committee report that they find the following Words in the sixth Section of the printed Act of the said Legislature, entitled "An Act for Establishing a Court of Admiralty, passed at a Agreed. Session which commenced on the fourth of August, 1778. The finding of the Jury shall establish the facts without reexamination or Appeal"; and in the seventh Section of the same Act the following words: "In all cases of Captures, an appeal from the Decree of the Judge of Admiralty of this State shall be allowed to the Continental Congress, or such person or persons as they may from time to time appoint for hearing and trying Appeals."
Your Committee are of Opinion that the Legislature, if their Sense be agreeable to the Construction made by the Judge in this Instance, have mistaken or overlooked the principles above Suggested, Rejected. on which an Appeal to the Supreme Executive power of the Law of Nations in all Questions relating to War and peace is founded; and cannot presume that that grave Body intended to Contravene the Exercise of that Necessary power by the Congress, in whom the several States have united that part of their respective Sovereignties. Nor can your Committee think that any one State, consistent with the union, has power to Contravene them therein, the same being an Infringement of that Sovereignty which the whole have Committed to Congress for purposes of common utility, and therefore, that the said act of the Legislature, so far as it has overlooked or centravened the said principles, ought to be deemed void.
Your Committee further report, that the Jury in the case of the Sloop Active found a Verdict in the following words vizt: "One fourth of the Neat proceeds of the Sloop Active and her Rejected. Cargo, to the first Claimants; three fourths of the Neat proceeds of the said Sloop and her Cargo to the Libellant, and the second Claimant as per agreement between them." In
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which they have not exercised the Jurisdiction proper to them, but have exercised the Jurisdiction proper to the Judge, and having found no facts, cannot in the Opinion of your Committee conclude him even by the Law of the State, should his own Construction thereon be admitted.
Upon the whole, your Committee are of Opinion that Congress or such person or persons as they appoint to hear and determine Appeals from the Courts of Admiralty have necessarily the power Agreed. to examine, as well into decisions on facts as decisions on the Law, and to decree finally thereon; and cannot be divested thereof by the Act of any particular State.
That the Decree made by the Committee of Appeals in the Case of the Sloop Active was made by a competent Jurisdiction, Agreed. and ought to be carried into Execution.
Your Committee therefore recommend that the Committee of Appeals be directed to order the monies arising from the sale of the Sloop Active, her Tackle, apparel and furniture and her Rejected. Cargo (which appear by the record annexed to their report to have been paid into the Hands of the Judge of the Court of Admiralty by the Marshal) to be paid to the persons who are entitled to receive the same under the decree made on the said Appeal by the said Committee.
Your Committee beg leave to suggest that in the prosecution of the Enquiries referred to them they have discovered some Rejected. Imperfections in the present System of Marine Judicatures, and to recommend to the Congress that the same be revised.1
[Note 1: 1 This report, in the writing of Thomas Burke, is in the Papers of the Continental Congress, No. 29, folio 357. The report, as adopted, is printed under March 6, 1779, post.]
Ordered, That the consideration thereof be postponed to Thursday next, and that Congress then be resolved into a Committee of the Whole, to consider the same.
The committee, to whom were referred two letters from Juan Garcia Duarti, with sundry papers from Samuel P. Savage, brought in a report, which was read.
[Adjourned to 10 o'Clock to Morrow]
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